Succession of Cassidy

[829] On Motion to Dismiss. The opinion of the Court was delivered by Todd, J. This is an appeal taken by an executor of a succession from a judgment rendered maintaining an opposition to his account. There is a motion to dismiss the appeal— 1st. On the ground that the appellant (the executor) has no appeal-able interest; 2d. That the court has no jurisdiction ratione materia. I. The opposition to the account is in the nature of a suit against the-succession; that is, it is a demand on the part of the opponents to compel the executor to place them on the account as creditors of the succession for a designated sum. Their demand was recognized by the court as a just one, and the account amended by placing the claim on the account and ordering its payment. Under this state of facts the executor, as the representative of the succession under administration, had certainly, in his representative capacity, an interest to appeal in behalf of the succession; and if was-his duty to do so if he believed the judgment was wrong. An executor has an interest to appeal whenever it is sought to wrest from him property belonging to the succession, or to impose a debt upon it which will diminish its assets in the fund to be distributed among the heirs or creditors; and his right to appeal exists independently of the heirs or creditors. Succession of McKenna, 23 Ann. 370; Succession of Chambury, 34 Ann. 25; Coyle vs. Succession of Creevy, Ib. 541. The cases referred to in support of the motion only apply to the case of a contest of creditors over a fund in the hands of an executor or administrator for distribution, and the determination of which cannot add to or diminish the assets of the succession; as where the litigation only concerns the rights of opposing creditors to a certain fund or the right to be paid by preference out of it. In such case it is a matter of indifference to the executor which creditor succeeds, and he has no interest whatever in the judgment determining tjbe question. II. The amount shown by the account to be in the hands of the executor for distribution exceeds $2000, and this gives the Court jurisdiction. Motion to dismiss is therefore refused.